Last week’s issue of the Badger was greatly enriched by the inclusion of a thought-provoking feature by Sam Waterman and Ralph Kellas on the increased marketisation of higher education (‘What’s happening to our universities’, 24.01.2011).

The piece highlighted the shift in political thought towards an increasingly singular view of society centred on the free market.Unfortunately, education is far from the only institution assaulted under the auspices of ‘efficiency’; legal aid has also been substantially undermined.

Since 1946 legal aid has been the primary guarantor of access to justice in the UK, providing funds for legal representation to those who could not otherwise afford it. Introduced by Clement Attlee’s government in 1946 it was regarded as a pillar of the welfare state of equal importance to the NHS. Legal aid’s premise is that true democracy predicates the real legal equality of persons, requiring equal access to the law.

The history of the erosion of legal aid’s founding principles will be depressingly familiar for those who read last week’s feature. The Thatcher administration ushered in significant cuts before the last Labour government fundamentally changed the way in which access to justice was treated.

The Access to Justice Act 1999 introduced competitive tendering for legal aid, the first major intrusion of the free market, this is widely considered to have triggered a ‘race to the bottom’ lowering the standard of legal aid work and thus exacerbating the disparity between rich and poor in their chances of succeeding at court.

However, once again it has been the present government who have launched the most withering attack upon access to justice’s founding principles.

You can be forgiven for barely noticing the 15 percent legal aid cuts announced in November, few envisage themselves needing its assistance and protests were distinctly muted. Perhaps, this is what led the government to make its most audacious claim; reducing legal aid would be ‘fairer’.

The Daily Mail, ever the champion of progressive social policy, attacked the fat cat lawyers taking millions from the state. The fact that the average legal aid lawyer’s wage is less than the average teacher’s seemed to be unnoticed. The irony that leading the charge was Kenneth Clarke, a wealthy Cambridge-educated barrister, seemed lost. Once again, the real victims were the poor.

The cuts saw the total removal of funding for employment, education and professional negligence claims and crippling cuts in private family, welfare and immigration cases. This ‘fairer’ system will see the families of those who died due to medical negligence or workers wishing to challenge unfair dismissals unable to get funding.

The government are very aware of the unjust nature of their reforms.

The government green paper said that cuts in claims against benefit decisions would disproportionately affect the ill and disabled – it was still scrapped. Let us hope that the new legions of disadvantaged appreciate that their misfortune is in the name of fairness.

If one discounts the spurious claim that the justice gap will be plugged by lawyers working for free, this once again leaves the free market as the arbitrator of societal rights this time in the form of ‘no win, no fee’ law firms.

The implications of this may not be immediately obvious, but they are extremely serious. Legal aid firms normally demand an over 60 percent chance of success to take on a case.
Thus, whether justice is sought for the poor will be substantially dictated by the commercial calculations of law firms. This presents two major problems.

First, claims against financially powerful interests are essential for maintaining true legal equality; however they remain poor prospects for risk-adverse, financially-motivated, lawyers. Second, challenges based on ambiguities and uncertainties in the law are indispensible in its wider development and public awareness of its deficiencies.

However, they also remain risky and labour-intensive work holding little appeal for the private sector. The decline of legal aid is indicative of the nefarious impact of increased ‘marketisation’ on our social institutions. Access to justice is being gradually transformed from an inalienable civil-political right into an economic privilege available to those who can afford it.

Precluding a segment of society from equal access to the courts, an entire branch of government, carries grave repercussions for the rule of law and democratic values in the UK.

The fact that the cuts were supposedly made to pay for the mistakes of the rich only compounds the injustice.

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The Badger

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